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Tuesday, October 23, 2007

Knox County Court Decision Should Be Wake-Up Call For Public's Right To Know

Finally.

That was our immediate thought when we read that a Knoxville judge and jury threw out a dozen elected officials who were chosen in violation of the Tennessee Open Meetings Law.

Of course, if violations of the Sunshine Law were the grist of Tennessee Waltz, almost every elected official in Tennessee would be involved in that judicial dance. After all, the law is regularly and routinely violated.

It’s amazing how inclined politicians are to ignore the public’s right to know how decisions are being made and how quick they are to offer up lame justifications for failing to follow the law.

It’s Not That Hard

In the aftermath of the landmark decision in Knoxville, there was much wringing of hands and gnashing of teeth by elected officials who said the law just is confusing.

But, how hard is it really to interpret this?

“All meetings of any governing body are declared to be public meetings open to the public at all times…”

While the law carves out some latitude for chance meetings and on-site inspections, it couldn’t be much clearer that when two or more elected officials of a public body get together to discuss some prickly issue or a private meeting is called to sort out some political problem, it’s purely and simply a violation of the Sunshine Law.

It Means What It Says

In Knoxville, the disregard for the law was particularly egregious since it involved Knox County Board of Commissioners meeting secretly to fill vacancies for eight vacant commissioners’ seats and for four full-time county elected officials, including the sheriff. The offices were vacated, after years of legal wrangling, when the Tennessee Supreme Court upheld the term limits approved by Knox County voters.

We’re not arguing that the law is perfect, and that it could use a comprehensive review by a blue-ribbon panel to make sure there are no inconsistencies or confusion.

Surprisingly, most elected officials in Tennessee take office without any formal orientation and most are never given an overview of the purpose and scope of the Sunshine Law. In the absence of information, they rely on anecdotes and advice from other people, usually colleagues, who have no in-depth understanding of the law either. While most are not well-versed in the law itself, they certainly have no understanding of the strong court cases in support of it.

The Courts Are Clear

In a lawsuit brought by The Commercial Appeal, it was ruled that the law is not unconstitutionally vague and ambiguous because it doesn’t define what it means for public bodies to give “adequate public notice.” In another case, the court said that the act is not unreasonable unless an elected body wants to prove that opening all meetings was detrimental to the public interest. Wisely, no one in political office has even attempted to tackle that standard of proof. Finally, in a 1992 ruling, a court said that the law should be construed broadly to promote openness and accountability in government.

For every breach of the law that makes it into the media, there are a dozen that don’t, so frequent are the casual violations. Journalists don’t even report on all the ones they see. As one Commercial Appeal reporter explained: “If we did, it’d just look like we’re always whining. The public doesn’t really get the fact that the law isn’t about the us (media), it’s about them.” It’s in keeping with a former CA editor who said that readers don’t want to hear your complaining about how hard your job is; just get the damn news.

It’s the rare reporter – although there have been some – who refuse to leave an unscheduled meeting that he’s stumbled across. Most times, the option is to leave the room and report about the meeting, hoping that this time the public will be equally upset.

Telling The Public

Sadly, it never happens, whether it’s from lack of understanding of the importance of public decision-making or from low expectations the public sets for its elected officials.

Of course, the law doesn’t just apply to elected officials. It also applies to every board, commission and committee created by city, county or state governments. With a couple of hundred city and county boards and commissioners, there’s not enough reporters in all of Memphis to keep up with their operations and to make sure they are adhering to the law. And like elected officials themselves, there are boards and commissioners that are strict and more who are lax.

Shelby County Government has done the best job of putting a structure in place that at least makes sure that public notice of meetings is given. Shortly after the Tennessee Open Meetings Act was passed in 1974, the Shelby County Quarterly Court, forerunner to the present board of commissioners, passed a resolution setting out a specific process for issuing public notices. It called for 48-hour notices for all county boards and commissions and public postings, and over the years, the requirement has been largely enforced closely, leading to cancellations of meetings and even to the delay of one bond issuance.

Web Lists

The Shelby County “Sunshine List” is now posted each week on the county’s website, and if nothing else, it’s always interesting reading to see the names of arcane boards making decisions that affect all of our lives. Also, the Board of Commissioners posts its schedule and its agendas. (Note: Someone should pay more attention to the posted schedule of Mayor AC Wharton, since it’s not been updated in about seven weeks.)

Meanwhile, over on the website of City of Memphis, City Council posts its schedules and agendas, but if there’s a list of the public meetings, it’s buried too deep to be easily found. That lack of concern about official notification has characterized city government since passage of the Sunshine Law, when officials decided that there wouldn’t be an official process to post notices or an officially defined notification period. As a result, reporters were accustomed to getting last-minute notices of meetings, and sometimes, City Hall officials considered it enough to just notify the newspaper reporters.

Of course, the sister law to the public meetings act is the public records law, and it probably is subject to even more abuse. Regularly, government staff officials tell the public and reporters that a document (think: consultant’s draft report on the proposed stadium) is not a public record when it clearly is.

On The Record

The most popular explanations are that the report isn’t final, that it’s not been adopted, or that it hasn’t been reviewed by the government official who commissioned it. None of these excuses matter. Once documents are received in a government office, they are public records. It’s that simple, and it’s baffling why this is so hard to understand or why there is so much resistance to sharing documents with the public who paid for them.

Gadflies like Joe Saino and Jerry Cobb have made their marks requesting reams of public records, and they can tell stories of obfuscation and misdirection that leave you shaking your heads. Similar stories of stonewalling and misleading are told by reporters. The consensus of some print and electronic reporters that we contacted is that city government is normally more open with records than county government. (They chalk it up to the presence of more lawyers in the county building than in City Hall.)

In an age when other local governments across the U.S. are posting all kinds of information on their websites, local governments here are essentially in the Cro-Magnon period of the digital era. The focus has largely been on getting money from the public for services rather than giving information to the public, and that’s too bad, because more communication and information would be a big first step in encouraging more public involvement in their governments.

It could begin simply – with an executive order from the mayors. It would read: Anytime a city or county department or board develops information, it needs also to develop a plan to get it online. Public records mean little if the public can never see them.

4 comments:

The Knox County situation is embarassing. There is no doubt that the commissioners wanted to avoid the openess contemplated by the open meetings act. The court made the right decision.

However, there is a "gag at a gnat, swallow an elephant" dynamic within the law. The "gnat" is that I as a County Commissioner, cannot co-sponsor or co-author ordinances or resolutions with another commission colleague. Nor, can I seek the input of a single colleague who is a subject matter expert. Two commissioners meeting under such a scenario would be considered as deliberating and therefore a violation of the sunshine law.

The "elephant" is that an entire caucus of the state legislature or half of a committee as long as it doesn't constitute a quorom may meet behind and closed doors to discuss public business.

As a local elected official I would be willing to except stiff, personal financial penalties egregiously violating the sunshine law (currently there are no substntial penalties for individual violators) in exchange for the ability to seek the counsel of or collaborate with just one of my colleagues -- not two or three or a committe or caucus, just one.

The "elephant" is that the state legislature is held to a much lower standard -- in fact and shamefully low standard -- in terms of open meetings. Local government is held to a much higher standard. The difference is from a practical standpoint inexplicable. Both should be held to a similar standard.

In terms of what is so secret, there is nothing secret in my suggestion. I believe the community could benefit from more collaboration. If I asked every question I have during a commission meeting or tossed out every idea that pops in my head to the entire body for discussion, we would spend hours more than we already spend deliberating. I just want to be able to call a single commissioner for advice or input without violating the law.

In regard to open records, at the local level, virtually everything other than personnel records should be open. Certainly, any correspondence that comes through the county commission can be obtained.

Finally, I did my part on the ethics law. I voted against the change. Of course, under the open meetings law, I wasn't allowed to talk to any of my colleagues about changing their vote...